April 10, 2023
Beyond Trump — UW political scientists on the legacy of the indictment on the U.S. presidency
University of Washington political scientists James Long and Victor Menaldo have spoken and written extensively about politics in emerging democracies and the ways in which countries — usually those other than the United States — check the power of their leaders, present and past.
Former President Donald Trump’s recent indictment poses existential challenges for an otherwise mature democracy like the United States: What are citizens willing to accept from their presidents, even once they’re out of office?
Menaldo and Long, both faculty in the UW Department of Political Science and co-founders of the Political Economy Forum, talked with UW News about how they frame these issues not only for the media and the general public, but also for their students. The conversation was edited for clarity.
Q: Watergate and President Ford’s pardon of Richard Nixon have come up often in discussions of the Trump case. Does it make sense to compare them?
James Long: Regardless of what you think of Ford’s pardon, Nixon paid a price for his misdeeds: He had to resign and left office in disgrace, even if he was not then criminally prosecuted. At this point, Trump has not yet faced accountability, assuming he’s guilty at all, and in fact he could be rewarded through reelection, which was never possible for Nixon.
Then there’s a broader point on how you want to treat presidents when they’re in office or after. Pundits and lawyers say every citizen is equal under the eyes of the law. That may be true in principle, but at the same time a president is not like everybody else — they have certain duties to uphold. That doesn’t mean presidents should commit corrupt or criminal acts, but it does mean that they perform a different function than all other citizens.
We’ve put members of Congress, governors, city council members and all manner of politicians in jail. When people have been really concerned about a president’s actions and their legality, we have basically decided as a country, until now, that it’s not worth it: Reagan and George H.W. Bush on Iran-Contra; Bill Clinton and “Lewinsky-gate”; George W. Bush for conduct in the war on terror. If what you care about is moving on, then you excuse the misdeeds, even possible crimes. You just hope that the person retires and you try to move on. The problem with Trump is that he wants to be president again.
Bad behavior on the part of previous presidents — when it’s been known – folks have decided to let it go in some broad sense. Now that’s changing. I think we’ve set a new precedent with Trump, and we have no idea what that means in the future.
Q: You’ve written about other countries’ experiences, including those that have prosecuted leaders aggressively and those that have avoided it for various reasons. What are the issues that arise?
Victor Menaldo: Presidents are political animals by nature. They are called on to do things that are always potentially at the margin of illegality, especially around foreign policy, because in Jack Nicholson’s famous words: “Americans simply can’t handle the truth.” If you put presidents under a microscope, you will always find some basis for some kind of accusation.
Victor Menaldo
So in response, there are two extremes: One is to put the microscope away and look the other way. The problem there is you incentivize bad behavior and end up with impunity. The second is to always use that microscope and magnify every little thing they do and encourage prosecutors to go after them with abandon. But if there’s an investigation every single time there is even the smallest iota of wrongdoing, then that’s going to create perverse consequences: A president will anticipate it, so they’re going to use their power to ward off prosecution or to stay in office so that they don’t see the jailhouse.
Israeli Prime Minister Benjamin Netanyahu is a good example. He was once a staunch defender of the judicial branch in Israel — a rather vanilla type of conservative. But when he started to get in legal trouble, especially in 2019 when he was sitting prime minister and indicted for fraud and bribery, he became more of a populist who attacked the other branches of government. He tried to get his supporters to help him legally by delegitimizing Israel’s democratic institutions, especially courts. In fact, he’s trying to do that now that he’s returned to power, and he’s mastered how to peddle conspiracy theories and radicalize and polarize the country to try to take the legal heat off.
The U.S. might start to look more like an Israel, Peru or Brazil, where it’s politically difficult not to go after leaders, and so both political parties may magnify that microscope and hyper-scrutinize everything leaders do. Then leaders may be tempted, like Netanyahu and Trump toward the end of his time in office, to undermine institutions and laws that threaten their freedom. This has been a recipe for eroding democracy, such as in Bolivia during Evo Morales’ presidency.
Q: How do you incorporate Trump in your teaching?
VM: Trump’s case has allowed me to focus on two tools democracy provides to uphold the rule of law and make sure politicians behave well. One involves how you sanction them and the other involves the leaders you select in the first place. The latter is usually more powerful because if democracy is constructed well, you’ll select the right type of leaders who don’t want to misbehave, whose strategy is to please the people in ways that are legal, and that strive to improve life for the majority of citizens, to leave the country better than they found it.
I think Trump showcases the failure of this screening tool. It’s not about electing angels but about selecting politicians who at least want to do right, even if it’s for self-interested reasons, such as improving their popularity or burnishing their legacy. It’s about rejecting leaders who aren’t going to press every advantage, look for every opportunity to politicize the law or cripple their opponents, or undermine institutions, to gain short-run advantages.
We have taken for granted in this country how much we rely on the screening tool so we can avoid turning to the sanctioning one. If you select bad leaders, then you are in trouble, because prosecutors may be beholden to them or, if they are not, a politician’s supporters are going to try to discredit attempts to hold them accountable. Good screening therefore beats imperfect punishment, and Trump makes it easier to teach this lesson.
JL: The interesting thing to teach about Trump to undergrads in my current class on global crime and corruption is not only about Trump, but about the American presidency: the two things that the framers of the Constitution thought about and in part, but only in part, gave us solutions to.
The framers were mindful of the fact that you can’t just take whatever criminal statute you have and always apply that to the president. You have to allow the president broader powers, and you also have to allow the fact that they may do something that’s not technically illegal but which is unbecoming of the office of the presidency and undermines their constitutional discharge. Therefore they should be removed from office in a way that is different than how a person may be thrown in jail if found guilty of a crime. So they wrote “high crimes and misdemeanors” in the constitution as an impeachable offense, which any impeachment article would have to define.
James Long
Secondly, they gave Congress this duty. They understood the balance of power would constrain the executive. They saw what Oliver Cromwell had done in the brief period when England didn’t have a monarch and they had their own revolution against King George. So they were fearful of a lawless executive and so part of Congress’ job is to limit presidential abuse of office.
But something the framers worried about but didn’t have a great solution to was how to avoid partisan interests in Congress that could undermine its impeachment powers. If people care more about being Democrats and Republicans than they do about asserting Congress’ role to stop an unruly president, or avoid overzealous and frivolous investigations, then the fact that this is Congress’ Constitutional prerogative doesn’t matter.
One thing the framers wouldn’t have anticipated is that the executive branch has essentially declared itself above the law. During the Nixon Administration, the Justice Department’s Office of Legal Counsel’s decision said that no sitting president can be criminally charged. This was upheld during the Clinton administration and formed the basis of Robert Mueller’s “declination” to prosecute Trump. To be clear, this is the executive branch, under the DOJ, providing legal and political cover to the head of that branch, the president, to do whatever they want. That’s the standard that we have right now — although the OLC opinion has not been tested in court, it throws the matter of a lawless president back to Congress.
Although Nixon never went through the impeachment process, it’s well documented that he resigned when Republican senators came to him and said he would not have the votes to survive conviction; and what about congressional Democrats and Republicans during Clinton’s impeachment and Senate trial, and both of Trump’s? Are these all examples of Congress performing the function the framers invested them with, shirking responsibility or something else entirely?
For my students, thinking about dilemmas the framers considered and the solutions they provided, but also how in various ways those solutions have been perhaps undermined, is profoundly fascinating and interesting.
Tag(s): College of Arts & Sciences • Department of Political Science • James Long • Victor Menaldo
